Supreme Court refuses innocent infringement P2P case

The US Supreme Court today refused to hear the case of a file-swapper who claimed she was an "innocent infringer," but one justice at least understands the absurdity of the current law.

The case concerned Whitney Harper, who shared some music on the family computer when she was a teenager and was subsequently hit with a lawsuit from the RIAA. Harper claimed that she was an "innocent infringer" who went straight when she learned about copyright law, and that she had thought P2P use was basically like (legal) Internet radio.

A federal court in Texas allowed Harper's claim, which reduced her liability to $200 per song instead of the usual statutory minimum of $750. An appeals court overturned the ruling; as it pointed out, copyright law currently states that one can't claim "innocence" so long as a copyright notice was printed on the physical "phonorecord." But because Harper had downloaded on computers and never seen the CD version of her songs, she argued that the provision was patently unfair and appealed to the Supreme Court.

The justices today refused to hear the case, though Samuel Alito dissented (PDF). "This provision was adopted in 1988, well before digital music files became available on the Internet," he wrote. "But a person who downloads a digital music file generally does not see any material object bearing a copyright notice, and accordingly there is force to the argument that §402(d) does not apply. In such a case, the question would simply be whether the infringer 'was... aware and had... reason to believe,' that the downloading was illegal."

While the Court is most likely to act on issues where the different Courts of Appeal are divided, Alito argued that the case should have been taken anyway. "Although there are now no conflicting Circuit decisions," he said, "I would grant review in this case because not many cases presenting this issue are likely to reach the Courts of Appeals. The Court has decided not to grant review at this time, but if a conflict in the Circuits develops in the future, the question presented, in my judgment, is important enough to warrant review."

For now, though, Harper's verdict remains in place: $750 for each of the 37 songs at issue, or $27,750.

117 Reader Comments

Interesting, I wasn't aware of how civil law handles behavior by minors. I always find it interesting how people are (apparently) willing to spend thousands upon thousands for lawyers to avoid "small" fines like this. You'd think paying for attorneys for a Supreme Court hearing would exceed that fine.

My guess is that the Lawyer who was taking this to the supreme court was not being paid. I think many lawyers would love the publicity that comes with a supreme court case and would take it on for no fee.

I really wish they would have heard this case... I think it would also be interesting to find out how her age at the time plays out. While generally ignorance of the law is no excuse the individual in question was a minor, and copyright it (in my mind and opinon) a contractual agreement. Since those below the age of majority, at least in the US, are unable by law to enter into a contractual agreement without the approval and co-signature of their legal gaurdian I have to wonder how the RIAA even has grounds to sue her as she was unlawfully entered into a contractual agreement without the awareness of her gaurdians.

And $750 per track minimum statutory damages for non-commercial infringement is ludicrous. Cases like this one really make me mad. I understand the need and desire to protect one's copyrights, but obscene penalties levied against random teenagers and single moms is not going to solve the problem.

I don't buy it. I downloaded music both in high school and after, and I never for a second believed that it was anything other than illegal. I just didn't care. (Note: I have since stopped downloading).

And $750 per track minimum statutory damages for non-commercial infringement is ludicrous. Cases like this one really make me mad. I understand the need and desire to protect one's copyrights, but obscene penalties levied against random teenagers and single moms is not going to solve the problem.

Well, I was gonna post something similar, but then I noticed your post. Well said.

I hate to say it but I agree with Alito. Times have changed and if a person never sees the notice on a physical object, there really isn't any way one can reasonably say that the notice is sufficient. At the very least, the court could have defined what the reasonable understanding is regarding the copying and re-sharing of a digital file.

I would assume Alito would then side with the RIAA, but the question of 'innocent infringement' is real and should be answered.

... copyright it (in my mind and opinon) a contractual agreement... I have to wonder how the RIAA even has grounds to sue her as she was unlawfully entered into a contractual agreement without the awareness of her gaurdians.

I think that's an overly simplistic view of how copyright works. Copyright isn't so much a contract as a license. Licenses between private parties need to be formalized as contracts, but, in this case, the license is provided by statute. No contract required.

I agree. However, this is a special case because this law specifically provides for a higher penalty if the infringer had been notified through a warning label. But this infringer never had a physical product, so the question is: "Did Congress mean for an infringer to pay the higher penalty if the infringer never had the opportunity to see the actual warning label?"

This is civil law we are talking about. The rules are completely different. nothing is black and white in civil law, its based on 51% probability... Something a lot of people seem to forget before opening their mouths.

$750 per song? Ridiculous. Someone could be made bankrupt for sharing 37 songs... It's absurd. When will the record companies finally give a fair enough deal to the consumer that sharing doesn't even enter their mind?

Interesting, I wasn't aware of how civil law handles behavior by minors. I always find it interesting how people are (apparently) willing to spend thousands upon thousands for lawyers to avoid "small" fines like this. You'd think paying for attorneys for a Supreme Court hearing would exceed that fine.

True, but if the goal is to end the practice of extortion by a major industry, rather than simply to avoid a fine for yourself, then it makes sense.

I'm not surprised the Court denied cert. I'm AM (pleasantly) surprised that it was one of the conservative justices dissenting here. Conservatives are not typically enlightened when it comes to copyright law and are more inclined to take a formalistic approach like the one applied by the Court of Appeals.

... copyright it (in my mind and opinon) a contractual agreement... I have to wonder how the RIAA even has grounds to sue her as she was unlawfully entered into a contractual agreement without the awareness of her gaurdians.

I think that's an overly simplistic view of how copyright works. Copyright isn't so much a contract as a license. Licenses between private parties need to be formalized as contracts, but, in this case, the license is provided by statute. No contract required.

Except she was a minor... Minors, by US law, cannot enter into legally binding agreements of any sort. Doesn't matter if it was a license, contract, or IOU. Under US law anyone under the age of 18 cannot be held liable for violation of an agreement, her parents on the other hand possibly, but not her.

And even IF her parents agreed alongside her, there is still questions of culpability. It's the same thing if you sign up for the Army when you are 16 with your parent's permission, but never show up to ship out to basic they won't mark you AWOL or missing movement, and they won't put it down in a permanent record because it is a legally tenous arguement that a 16 year old can be held to a legal agreement in US law.

Again, this is about distributing copyrighted materials, not receiving. The issue is not $0.99 per song, but $0.99 per person who receives the file. In the case of P2P, it can be exponential if each person in turn shares it when they download it.

For 37 songs, the cost racks up to $27,416.43 if each person on average shares it with 2.83 people (rounded to $1).

... copyright it (in my mind and opinon) a contractual agreement... I have to wonder how the RIAA even has grounds to sue her as she was unlawfully entered into a contractual agreement without the awareness of her gaurdians.

I think that's an overly simplistic view of how copyright works. Copyright isn't so much a contract as a license. Licenses between private parties need to be formalized as contracts, but, in this case, the license is provided by statute. No contract required.

Except she was a minor... Minors, by US law, cannot enter into legally binding agreements of any sort. Doesn't matter if it was a license, contract, or IOU. Under US law anyone under the age of 18 cannot be held liable for violation of an agreement, her parents on the other hand possibly, but not her.

And even IF her parents agreed alongside her, there is still questions of culpability. It's the same thing if you sign up for the Army when you are 16 with your parent's permission, but never show up to ship out to basic they won't mark you AWOL or missing movement, and they won't put it down in a permanent record because it is a legally tenous arguement that a 16 year old can be held to a legal agreement in US law.

My whole point is that it is NOT a contract. It is a statute.

This is NOT what happened: RIAA proposed some license terms. Minor accepted their proposal. This would be a contract and the RIAA would have no standing.

This IS what happened: Congress decided what the license terms will be and what the penalties will be for violating them. Nothing about such a statutory process requires the licensee to be of majority.

Again, this is about distributing copyrighted materials, not receiving. The issue is not $0.99 per song, but $0.99 per person who receives the file. In the case of P2P, it can be exponential if each person in turn shares it when they download it.

For 37 songs, the cost racks up to $27,416.43 if each person on average shares it with 2.83 people (rounded to $1).

Are you saying she should be held responsible for the actions of other people? If they shared the song after getting it from her, let them face those consequences. If she shared each file with 2.83 people, the cost comes to about $104.71.

I really doubt that Harper really had no clue that what she was doing was illegal.

Computers have been in the home and workplace for nearly 2 decades, yet many are still uncomfortable with them.

The automobile has been around longer than most of us, yet most can't change a tire or oil without help.

The point is this: I've been a web developer for nearly 20 years and I can attest people are not very astute to copyright laws.

I should also point out copyright isn't as simple as "downloading a file", but only $400/hr. lawyers have the ability to make sense of it all... once the confusing parts are cleared up in a court of law.

On a personal note: screw this idiocy. The only thing America can produce is lawsuits and "intellectual property". Everything else is imported from China and Mexico (who are also jumping on the "IP" lawsuit bandwagon).

Again, this is about distributing copyrighted materials, not receiving. The issue is not $0.99 per song, but $0.99 per person who receives the file. In the case of P2P, it can be exponential if each person in turn shares it when they download it.

For 37 songs, the cost racks up to $27,416.43 if each person on average shares it with 2.83 people (rounded to $1).

Are you saying she should be held responsible for the actions of other people? If they shared the song after getting it from her, let them face those consequences. If she shared each file with 2.83 people, the cost comes to about $104.71.

I'm still not sue how you came up with $27,416.73

They couldn't have broken the law without her, so yes. P2P networks only exist because of those that share, hence why they are taking the majority of the burden in these lawsuits.

And the number comes from 37 to the 2.83 power. As I said, exponential so imagine a pyramid with her at the top.

Again, this is about distributing copyrighted materials, not receiving. The issue is not $0.99 per song, but $0.99 per person who receives the file. In the case of P2P, it can be exponential if each person in turn shares it when they download it.

For 37 songs, the cost racks up to $27,416.43 if each person on average shares it with 2.83 people (rounded to $1).

Are you saying she should be held responsible for the actions of other people? If they shared the song after getting it from her, let them face those consequences. If she shared each file with 2.83 people, the cost comes to about $104.71.

I'm still not sue how you came up with $27,416.73

They couldn't have broken the law without her, so yes. P2P networks only exist because of those that share, hence why they are taking the majority of the burden in these lawsuits.

And the number comes from 37 to the 2.83 power. As I said, exponential so imagine a pyramid with her at the top.

Still not getting your math, based on your logic, if she shared it with just one other person who shared it with one other person, etc. you wold get to infinity-million-dollars before you run out of people sharing the file, no exponentials required.

But back to my original point, I am going to take a wild guess and claim that the same evidence that shows she uploaded the file will show that she also downloaded the file. Therefore it is incorrect to say "They couldn't have broken the law without her," obviously someone else is also uploading the file. If there is proof that she is the one who originally leaked it from the source, then I can see a case that she should be held responsible for everyone else's actions. barring that she should be held responsible for her share of the file sharing network she participated in. If we assume the network was of size N and that each member of the network downloaded the file, then there are exactly N cases of infringement. So if we take the amount of infringement times the portion of the network she represents, we get N * 1/N time the number of files = $37 for any size of network.

"Those pesky Conservatives are all about the letter and not the intent, you know.... "

Ding! Wrong, thank you for playing. The conservatives are all about the Founders' intent AND the letter. It is the Liberals who have the philosophy of Thurgood Marshall, "You do what you think is right and let the law catch up."

Again, this is about distributing copyrighted materials, not receiving. The issue is not $0.99 per song, but $0.99 per person who receives the file. In the case of P2P, it can be exponential if each person in turn shares it when they download it.

For 37 songs, the cost racks up to $27,416.43 if each person on average shares it with 2.83 people (rounded to $1).

Chances are against anyone downloading a song more than once. If I download, I do it once and then copy it from there to other devices. So the number of DLs and ULs for a given torrent swarm should be about equal right? Wouldn't the number of times the average peer has shared a file be around 1? Where are these magic ghost hard drives that all the extra uploads are going to?

There will be a mix of people who have seeded from the beginning, and those that don't at all, and a handful that canceled (and so never had a full copy to begin with). But I'd think that without knowing my transfer ratio, the most you could reasonably assume is 1 distributed copy per file.

And on an individual basis, there are usually way more leeches than heavy seeders. Without further info, I'd think most people would have sent less than 1 copy per file downloaded.

Again, this is about distributing copyrighted materials, not receiving. The issue is not $0.99 per song, but $0.99 per person who receives the file. In the case of P2P, it can be exponential if each person in turn shares it when they download it.

For 37 songs, the cost racks up to $27,416.43 if each person on average shares it with 2.83 people (rounded to $1).

Are you saying she should be held responsible for the actions of other people? If they shared the song after getting it from her, let them face those consequences. If she shared each file with 2.83 people, the cost comes to about $104.71.

I'm still not sue how you came up with $27,416.73

They couldn't have broken the law without her, so yes. P2P networks only exist because of those that share, hence why they are taking the majority of the burden in these lawsuits.

And the number comes from 37 to the 2.83 power. As I said, exponential so imagine a pyramid with her at the top.

So, if she's sued and pays up, does that mean that all the people who downloaded it from her, and subsequently shared it, are in the clear in your view? Or would they also owe damages? And if the latter, how is that not double-dipping?

P2P is one big pyramid scheme. It works better with the more users and content involved, so it's effects are exponential.

The number I shared represented how many times the 37 songs she shared had to be shared themselves to total the damages awarded in the suit. Relatively low compared to the other major copyright infringement lawsuits.

And the number comes from 37 to the 2.83 power. As I said, exponential so imagine a pyramid with her at the top.

This makes no sense at all. Firstly, how could each person share the files with 2.83 people on average? The files would only get copied n-1 if there are n people. So the average sharing could only possibly be (n-1)/n. So basically what you're saying is totally impossible.

Secondly why are you assuming she's at the top of the "pyramid"? What if she is at the bottom? I.e. her sharing led to less than 3 people getting files? By assuming she's on the top of the pyramid, you're basically equating every person with the top of the pyramid (which is of course impossible).

*Thirdly, you're then saying that she should pay for the total damages caused the sharing. Yet there is no distinguishing her from others. If this logic were applied to everyone, then the total damages would be incredibly over counted.